Another lawsuit against Elizabeth

ELIZABETH, NJ — Elizabeth Mayor J. Christian Bollwage, Police Director James Cosgrove and several members of the Elizabeth Police Department find themselves in the midst of another lawsuit.

Elizabeth Police Sgt. Todd Kelly filed a suit last week in superior court against Bollwage, Cosgrove, the city of Elizabeth, The Elizabeth Police Department, and Elizabeth Chief of Police Patrick Shannon, Deputy Chief Tyrone Torner, and John Does 1 to 10.

The suit comes on the heels of the recent vote of “no confidence” against Cosgrove — and implication of Bollwage as well — by two police unions. In addition, Torner was recently named in a race and discrimination lawsuit filed by another police officer.
The suit claims that the defendants violated the New Jersey Civil Rights Act, perpetrated a tort against the plaintiff, and executed retaliatory measures, “specifically, defendants Bollwage and Cosgrove unlawfully promoted officers and continue to deny plaintiff the rights he is entitled to under the laws of the state of New Jersey,” reads the complaint. “Defendants’ retaliatory actions hereinabove were especially egregious, in that it was motivated by actual malice or that was done with willful and wanton disregard of the rights of plaintiff and citizens of the city. Upper management defendants Bollwage, Cosgrove, Shannon and Torner actually participated in, and/or were willfully indifferent to, the wrongful retaliatory conduct.”

Kelly, who has been with the department since 1996, and who has held the rank of sergeant since 2005, filed the suit after years of what he alleges to be a series of violations perpetrated against him, as well as retaliatory actions.

It goes back to 2013, when Kelly passed a Civil Service Lieutenant exam, ranking first at the EPD out of all eligible sergeants, and placing third in the entire state.

After achieving the qualification of lieutenant in 2014, a new list became active for the rank of lieutenant, on which Kelly ranked first to fill the one vacancy for lieutenant at the department. Soon after, however, Kelly became aware of a potential misrepresentation and alleged violation when he found out that Cosgrove, the appointing authority, submitted a request for certification to the Civil Service Commission to certify the next three eligible sergeants in the department — Jose Rodriguez, Michael Niewinski and Lawrence Gioconda, from the lieutenant list.

According to the suit, Cosgrove indicated on the request for certification that there were three vacancies for the rank of lieutenant. At the time that this request was made, however, the department allegedly had 20 active permanent lieutenants. The Table of Organization at that time allowed for a total of 21 lieutenants, and contrary to Cosgrove’s request, there was only one vacancy for the position of lieutenant at the department, allegedly rendering Cosgrove’s certified statement “false and inaccurate.”

Kelly soon learned that it was Cosgrove’s intention to promote Rodriguez, Niewinski and Gioconda to the rank of lieutenant from the Expired Lieutenant List, which did not include Kelly’s name, through obtaining the certification from the CSC, instead of using the Active Lieutenant List, in which he was ranked first.

The Active Lieutenant List gives officers who wish to be considered for promotion an opportunity to take the Civil Service exam. The list expires at the end of three years.
Kelly later met with the Superior Officers Association, informing them that Cosgrove would be in violation if he promoted the other officers to lieutenant.

According to the suit, the SOA met with Cosgrove, informing him that Kelly, along with another officer, James Kearns, were the first officers eligible for promotion, and that both officers would appeal the appointments if Cosgrove went through with his plan. The SOA also clarified with Cosgrove that he would be in violation of Civil Service laws. Cosgrove allegedly stated, however, that he planned on going ahead with the promotions from the Expired List.

The SOA president subsequently met with Kelly and Kearns, stating that he had spoken to Bollwage regarding the upcoming promotions and proposed appeal to be filed by both Kelly and Kearns. “Bollwage advised Shaughnessy to pass on a message to plaintiff and Kearns,” reads the suit. “Bollwage’s message was to make it clear to Plaintiff and Kearns that if they were to appeal the upcoming promotions of Niewinski and Gioconda, and such appeal results in the demotion of Rodriguez, Niewinski or Gioconda, that Bollwage will, in turn, “freeze” the Active Lieutenant List for three years and demote captains to fill the vacancies in the lieutenant positions. By “freezing” the Active Lieutenant List for three years, plaintiff would be required to retake the Lieutenant’s Exam in 2016 in order to have the opportunity to be promoted to the rank of lieutenant in 2017.”

Bollwage and Cosgrove both did not respond to LocalSource’s request for comment.
Soon after, Cosgrove allegedly issued the order promoting Rodriguez, Niewinski and Gioconda from the rank of sergeants to lieutenants, and reassigning Kelly to the Narcotics Unit as supervisor, a unit in which he had held the position of narcotics division sergeant since 2008, while several captains were transferred in and out of the unit.

In April, 2014, Kelly, along with Kearns and another officer, filed an appeal with the CSC in regard to the promotions of Niewinski and Gioconda.

The appeal asserted that “Cosgrove intentionally misled the CSC by claiming that there were three vacancies for the rank of lieutenant at the time of the request for certification.” The appeal also asserted that “Cosgrove and Bollwage knowingly and purposefully violated” a code by promoting Niewinski and Gioconda. Further, the appeal detailed the alleged threats made by Bollwage to Kelly and Kearns, asserting that “such threats clearly violated the declaration of policies provided … which protects career public employees from political coercion.”

Kelly, Kearns and the third officer later filed a verified complaint in superior court, naming the city and Cosgrove as defendants.

Less than 24 hours later, Cosgrove allegedly sent a message to Kelly that he was being transferred out of the Narcotics Division and into the Patrol Division, bringing with it less desirable work hours and little opportunity for overtime. In addition, in the Patrol Division, Kelly was now required to be in full police uniform instead of the plainclothes he was able to wear in Narcotics, his take-home vehicle was taken away, and he received a limited amount of monthly overtime. According to the suit, Kelly estimates the overtime reduction to have been an approximately a 90 percent decrease. Kelly was also never informed as to the reason for the demotion.

In 2015, according to the suit, Shannon issued a special department work permit order, which included a list of officers whose work permits were being denied for 2015 as a result of “a careful review of the attendance records.” Kelly was one of the 48 officers in the department named, while 43 additional officers — whose attendance record was worse than Kelly’s — had not been included on the list.

Kelly submitted a private report requesting an appeal of the decision denying his 2015 work permit, and expressing his belief to Torner that the order was made in retaliation for Kelly filing a complaint regarding the promotions of Niewinski and Giaconda. According to the suit, “Torner responded to plaintiff that ‘it should be expected,’” and that Kelly’s career was “dead in the water” for filing the appeal.

LocalSource’s attempts to reach both Shannon and Torner were unsuccessful.
SOA later approached Cosgrove to offer an appeal of Kelly’s 2015 work permit denial. According to the suit, Cosgrove claimed that Kelly’s inclusion on the list was a “mistake,” blaming Shannon for the error.

Kelly later became aware of what the suit describes as “disturbing comments” posted by Gioconda on Facebook directed at him, describing Kelly as an “enemy within our walls.”

According to the suit, Kelly was advised by counsel to the city and the EPD “that the city would only consider plaintiff’s promotion to the open lieutenant position if both the Civil Service and Superior Court-verified complaint were withdrawn by plaintiff.”
Kelly, however, did not agree to withdraw the complaint. Finally, in April, 2015, Giaconda’s appointment to lieutenant was rescinded, leaving a second vacancy for rank of lieutenant.

In May, 2015, Kelly attended the 200 Club of Union County Annual Valor Awards Luncheon with his family, where he received a Valor Award for his involvement in a recent investigation arrest. Bollwage, who attended the event, allegedly told Kelly’s mother that he would “never promote” Kelly because he had gone “against the city” by filing an appeal, according to the suit.

When a third vacancy for lieutenant became available in July, the suit alleges that instead of promoting eligible sergeants, the department “was forced to pay lieutenants overtime, thereby needlessly wasting taxpayer and public monies, to cover the lieutenant position in Patrol.”

When Bollwage was informed by the PBA that the overtime issue could easily be resolved by promoting lieutenants, Bollwage allegedly responded that because Kelly had sued the city, he would no longer make promotions. According to the suit, Bollwage also allegedly stated that he would not promote Kelly “to make him pay the price for filing the appeal and verified complaint.”

The suit alleges that as a result of not promoting lieutenants, the city paid in excess of 700 hours, or approximately $70,000, in overtime from March 1, 2015 through Aug. 10, 2016 in order to fill the vacancies for desk lieutenant in the patrol division.”

Bollwage allegedly informed the PBA that he had no intention of promoting Kelly. In addition, Cosgrove communicated that because he was still angry at Kelly, he would not set a date for promotions. “After achieving the rank of lieutenant, plaintiff intended on sitting for the Civil Service Captain’s Exam at the next available time,” reads the suit. “As a result of the many unlawful, retaliatory actions set forth herein, Plaintiff has been deprived of that opportunity.”

Brian Schiller, attorney for Kelly, told LocalSource in an email that the actions of Bollwage, Cosgrove, and the EPD are indicative of what is wrong in many city governments. “Todd Kelly scored the highest in Elizabeth and the third highest in the entire state on the lieutenant’s exam in 2013,” said Schiller in an email. “In 2014, he was passed over for promotion to lieutenant due to the mayor and police director’s personal and political agendas. The mayor and police director are what’s wrong with Elizabeth, and government generally, in today’s society.”

According to Schiller, Kelly is a long-time Elizabeth resident. “Todd is a product of Elizabeth,” said Schiller. “He went to Elizabeth High School where he was captain of the football team. For the past 20 years, Todd has dedicated himself to protecting the citizens of Elizabeth. He is a decorated police officer and well respected by his peers. Instead of being promoted, Todd has experienced iniquitous retaliation over the past two and a half years. The retaliation has taken many forms, and has affected many people, including Todd, his family and the community.”